(Circulated by authority of the Minister for Employment and
Workplace Relations, the Honourable Kevin Andrews MP)

OCCUPATIONAL HEALTH AND SAFETY (COMMONWEALTH

EMPLOYMENT) AMENDMENT (PROMOTING SAFER WORKPLACES) BILL
2005

OUTLINE

The Occupational Health and Safety
(Commonwealth Employment) Act 1991 (the Act) establishes a
statutory framework to secure the health and safety of Commonwealth
Government employees (including employees of Commonwealth agencies,
statutory authorities and Government business enterprises) while at
work. This framework complements the Commonwealth
workers’ compensation and rehabilitation legislation.

The Commonwealth’s approach to
occupational health and safety focuses on the prevention of
workplace deaths and injuries. The Commonwealth recently
amended the Act, through the Occupational Health and Safety
(Commonwealth Employment) (Employee Involvement and Compliance)
Bill 2004 (EI&C Bill) which came into effect on 13
September 2004, to provide a new enforcement regime based on both
criminal and civil penalties. The amendments seek to prevent
workplace injuries and accidents and improve workplace safety by
providing an even greater mix of preventative, remedial and
punitive civil and criminal sanctions, but reserving criminal
sanctions for the most serious breaches.

On 27
November 2003, the Legislative Assembly of the Australian Capital
Territory (ACT) passed the Crimes (Industrial Manslaughter)
Amendment Act 2002 . This legislation commenced on 1 March
2004. That Act inserted a new Part 2A into the Crimes Act
1900 (ACT). Part 2A contains two new offences of
industrial manslaughter. The two offences are:
‘Industrial manslaughter - employer offence’ and
‘Industrial manslaughter - senior officer
offence’.

It is possible that there are some
Commonwealth authorities, particularly Government business
enterprises, and the employees of such bodies, covered by the Act
which may be liable to prosecution for the industrial manslaughter
offences contained in Part 2A of the Crimes Act 1900
(ACT).

The
Commonwealth opposes the ACT industrial manslaughter laws on the
basis that they create specific offences:

(a) which
duplicate existing offences available to deal with
workplace deaths, such as the general offence of manslaughter in
section 15 of the Crimes Act 1900 (ACT) and the
Occupational Health and Safety Act 1989 (ACT); and

(b) which
single out the conduct of employers and senior officers.

The
purpose of this Bill is to exclude Commonwealth employers and
employees from the application of the ACT industrial manslaughter
laws and any other similar industrial manslaughter laws enacted by
a State or Territory in the future and that are prescribed in the
regulations.

The
Bill proposes to amend the Act to provide that:

(a) Part 2A of
the Crimes Act 1900 (ACT); and

(b) any other
similar industrial manslaughter laws in a State or Territory that
are prescribed in the regulations;

have no
effect to the extent to which those laws impose a criminal
liability on an employer, employing authority or employee covered
by the Act in respect of a person’s death that occurs during,
or in relation to, the person’s employment or provision of
services to another person.

FINANCIAL IMPACT STATEMENT

The Bill has no financial impact on the
Commonwealth Budget.

NOTES ON CLAUSES

Clause 1 - Short title

This is a
formal provision specifying the short title of the Act.

Clause 2 - Commencement

This clause
specifies the Act is taken to have commenced on the day on which it
receives Royal Assent.

Clause 3 - Schedule(s)

Clause 3
provides that an Act specified in a Schedule to this Act is amended
or repealed as set out in the Schedule, and that any other item in
a Schedule operates according to its terms.

1.2
Proposed subsection (1) deals with the enactment of other
industrial manslaughter laws similar to Part 2A of the Crimes
Act 1900 (ACT) in any State or Territory. This subsection
would provide that the new section 11A applies to a law of a State
or Territory that imposes criminal liability in respect of a
person’s death that occurs during, or in relation to, the
person’s employment or the provision of services to another
person and is prescribed by regulations.

1.3
Without the criteria of prescribing the relevant laws, proposed
paragraph (1)(a) could apply to State and Territory laws which
create general criminal offences, such as manslaughter, murder and
culpable driving. This would include, for example, the
offence of manslaughter in section 15 of the Crimes Act 1900
(ACT). However, it is not the Commonwealth’s intention
to exclude its employers, employing authorities or employees from
the application of these laws. Similarly, the
Commonwealth does not intend to affect the operation of
section 4 of the Act which provides for the concurrent operation of
State and Territory laws which promote occupational health and
safety.

1.4
Commonwealth occupational health and safety policy is focussed on
prevention of workplace deaths and injuries. State and
Territory laws which purport to impose criminal liability in
respect of a person’s death that occurs during, or in
relation to, the person’s employment or provision of services
to another person are inconsistent with this policy - that is, laws
like Part 2A of the Crimes Act 1900 (ACT). Only this
particular type of law would be prescribed under the new paragraph
(1)(b).

1.5
Proposed subsection (2) would provide that new section 11A applies
to Part 2A of the Crimes Act 1900 (ACT). The new
section 11A, however, would only apply to criminal liability
imposed by Part 2A that is in respect of a person’s death
that occurs during, or in relation to, the person’s
employment or provision of services to another person. This
would ensure that if Part 2A were amended, for example by inserting
other offences which do not impose criminal liability in respect of
a person’s death that occurs during, or in relation to, the
person’s employment or provision of services to another
person, those other offences would not be
affected.

1.6
Proposed subsection (3) would provide that a law to which the
section applies under new subsection (1) or (2) has no effect to
the extent that it purports to impose a criminal liability on an
employer, employing authority or employee covered by the Act in
respect of a person’s death that occurs during, or in
relation to, the person’s employment or provision of services
to another person.

1.7
Proposed subsection (3) would apply in respect of conduct of an
employer, employing authority or employee occurring on or after 1
March 2004. Although the Occupational Health and Safety
(Commonwealth Employment) Amendment (Promoting Safer Workplaces)
Act 2005 would commence on the date on which it receives the
Royal Assent, proposed subsection (3) would have retrospective
effect, by ensuring that an employer, employing authority or an
employee covered by the OHS(CE) Act would not be liable for
industrial manslaughter offences under Part 2A of the Crimes Act
1900 (ACT) for conduct that occurs on or after 1 March
2004.

1.8
The retrospective effect of the amendments is consistent with the
Commonwealth’s view that existing occupational health and
safety laws and the generally applying criminal laws already cover
the conduct with which the industrial manslaughter offences seek to
deal and provide appropriate sanctions for such conduct.

1.9
Proposed subsection (4) would clarify that the terms
‘employer’, ‘employing authority’ and
‘employee’ in the new section 11A would have the same
meaning as given in section 5 of the Act.

1.10
Proposed subsection (5) would provide that subsection (2) does not
limit the generality of subsection (1). This provision has
been included to ensure that the reference to a law of a State or
Territory in proposed subsection (1) is not read down. For
example, subsection (2) should not prevent other Australian Capital
Territory laws being prescribed for the purposes of the proposed
subsection (1). Proposed subsection (5) would also clarify
that Part 2A of the Crimes Act 1900 (ACT) is not a law which
needs to be prescribed for the purposes of the new subsection
(1).

1.11
Proposed subsection (6) would ensure that section 4 and section 11
of the Act do not affect or limit the operation of proposed section
11A.

1.12
Section 4 permits State and Territory laws that promote the
occupational health and safety of persons to operate concurrently
with the Act. Subsection 11(2) provides that nothing in the
Act, including section 4, renders the Commonwealth, a Commonwealth
authority (other than a Government business enterprise) liable to
be prosecuted for an offence. Subsection 11(3) of the Act
provides that subsection (2) does not prevent the Commonwealth or
Commonwealth authority being liable to proceedings for a
declaration of contravention by a court and to pay a pecuniary
penalty pursuant to an order of a court. Commonwealth and
Commonwealth authorities will also be subject to other civil orders
such as enforceable undertakings, remedial orders and
injunctions.